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ISCR Case 16-02684.h1 — CASE

ISCR Case 16-02684.h1granted

Case Headnote

ISCR Case No. 16-02684.h1

grantedFeb 20, 2018· Hon. Paul J. Mason· hearing

Summary

A 61-year-old naturalized U.S. citizen, originally from Ghana, was granted a security clearance despite concerns under Guideline E (Personal Conduct). The Statement of Reasons alleged deliberate falsification of his June 2015 e-QIP by omitting disciplinary information. This included a letter of reprimand for allowing an unverified visitor, a letter of counseling for a non-medical call off, and a reprimand for damaging a government vehicle.

Further allegations detailed reprimands for not wearing a hat on duty, having a personal cell phone on duty (which also led to a one-day suspension), leaving a company radio in a restroom, and unreasonable delay in tasks with a failure to report a security issue. He also received a written notice for returning a government vehicle without filling the gas tank, a reprimand for losing a company gas credit card, and four late-to-work reprimands between April 2010 and February 2016.

The judge ultimately granted the clearance, finding that the applicant's omissions were due to confusion and reliance on his supervisor's advice, rather than deliberate intent. The applicant provided credible testimony and character references, had no prior security violations, and maintained a stable employment history.

Why the Applicant Prevailed

The applicant demonstrated credible testimony and character references supporting his integrity.
The judge found the applicant's omissions were not intentional but based on misunderstanding and reliance on incorrect advice from his supervisor.
The applicant had no prior security violations and maintained a stable employment history.

Conditions Referenced

Disqualifying

AG ¶ 16(a)raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts
AG ¶ 16(d)raisedCredible Adverse Information

Mitigating

AG ¶ 17(a)appliedThe Individual Did Not Deliberately Conceal or Falsify Information
AG ¶ 17(c)appliedThe Individual Has Taken Positive Steps to Mitigate the Security Concerns

Key Rule Quoted

“"A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence."”

Procedural Posture

SOR issuedOct 21, 2016
Answer filedNov 3, 2016
Hearing heldNov 27, 2017Applicant and six witnesses testified.
Decision dateFeb 20, 2018

Cite For

Mitigating Factors Related to Personal Conduct Under Guideline E
Credibility Assessments in the Context of Language Barriers
The Importance of Reliance on Accurate Advice From Supervisors Regarding Disclosure Obligations

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant overcame the personal conduct concerns raised in the Statement of Reasons (SOR). The allegations primarily involved the deliberate concealment of relevant facts in the applicant's e-QIP. The judge ruled in favor of the applicant, granting eligibility for access to classified information.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	The applicant deliberately falsified the June 2015 e-QIP by omitting relevant disciplinary information.	For Applicant	Falsification Security FormNOT DELIBERATE	Employment History	Denied	(a) deliberate omission, concealment, or falsification on a security form	(b) omission/refusal followed advice of counsel; later cooperated fully	Claimed Explanation of Omission Credible
1.b	The applicant received a letter of reprimand for failure to carry out assigned tasks by allowing a visitor in the building without proper identification.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.c	The applicant received a letter of counseling for a non-medical call off.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.d	The applicant received a letter of reprimand for damaging a government vehicle.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.e	The applicant received a letter of reprimand for not wearing his hat while on duty.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.f	The applicant received a letter of reprimand for having a personal cell phone with him while on duty.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.g	The applicant received a one-day suspension for having a personal cell phone with him while on duty.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.h	The applicant received a letter of reprimand for leaving a company assigned radio in the restroom.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.i	The applicant received a written reprimand for unreasonable delay in carrying out tasks and failing to report a potential security issue in a timely manner.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.j	The applicant received a written notice of violating company policy by returning a government vehicle without first filling the gas tank.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.k	The applicant received a letter of reprimand for losing a company gas credit card that was in his possession.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.l	The applicant received four late-to-work reprimands between April 2010 and February 2016.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-02684 ) Applicant for Security Clearance )

For Government: Robert B. Blazewick, Esq., Department Counsel For Applicant: Sheldon I. Cohen, Esq.

02/20/2018 ______________

STATEMENT OF CASE

______________ MASON, Paul J., Administrative Judge:

Applicant has overcome the personal conduct concerns raised in the SOR. Eligibility for access to classified information is granted.

Statement of the Case

On June 14, 2015, Applicant submitted an Electronic Questionnaire for Investigations Processing (e-QIP) as a part of his security clearance application. The Department of Defense (DOD) could not make the affirmative findings required to continue a security clearance. DOD issued to Applicant a Statement of Reasons (SOR), dated October 21, 2016, detailing security concerns for personal conduct under Guideline E. The action was taken under Executive Order (E.O.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective in the DOD on September 1, 2006. This case was decided under the new guidelines that became effective on June 8, 2017. These guidelines superseded the former guidelines that had been in effect since September 1, 2006. My decision in this case would be the same under the 2006 or 2017 guidelines. Applicant submitted his notarized answer to the SOR on November 3, 2016. DOHA issued a notice of hearing on October 20, 2015, for a hearing on November 27, 2017. At the hearing, three Government exhibits (GE) 1-11 were admitted into evidence without objection. Applicant and six witnesses testified. Applicant’s 14 exhibits (AE) A through N were admitted into evidence without objection. The transcript (Tr.) was received on December 5, 2017; the record closed the same day.

Rulings on Procedure

At the outset of the hearing, a discussion was conducted regarding SOR 1.a alleging Applicant’s omission of information from Section 13A (on the job discipline or warning) of his e-QIP, which he certified on June 14, 2015. I asked Department Counsel how SOR 1.l (four written reprimands between April 2010 and February 2016) could be included in the purview of the SOR 1.a (e-QIP June 14, 2015), when at least one or more alleged events in SOR 1.loccurred after the June 2015 e-QIP certification date. The last of the allegation reads:

“subparagraphs 1.bthrough 1.i and, 1.lbelow.”

Department Counsel moved to amend the last line to:

“subparagraphs 1.bthrough 1.i, and 1.l (through June 14, 2015, the date of the e- QIP)

Applicant had no objection to the modification and the motion to amend was granted. (Tr. 8-12)

The second topic of discussion was the applicability of the AG disqualifying conditions for personal conduct to the allegations of the SOR. Department Counsel explained that the SOR 1.a, the subparagraph stating the falsification allegation (citing the other subparagraphs SOR 1.b-1.i, and 1.l) falls within the scope of AG ¶ 16(a) of Guideline E. SOR 1.b-1.ldo not allege any type of falsification, but rather constitute rule violations as referenced in AG ¶ 16(d)(3). Applicant expressed a different reading of the SOR. He submits that SOR 1.a alleges only that he deliberately falsified the June 2015 e-QIP by omitting allegations 1.bthough 1.l. He does not believe he was provided adequate notice that SOR 1.b-1.lhave independent significance as rule violations under AG ¶ 16(a)(3). I agree with Department Counsel’s reading of the SOR. The Government has never cited the specific disqualifying conditions under Guideline E along with a specific SOR allegation. Applicant’s objection based on the lack of notice to SOR 1.b-1.las also representing rule violations was overruled. (Tr. 12-18)

FINDINGS OF FACT

The SOR alleges two types of conduct under the personal conduct guideline. The first type of conduct is the deliberate concealment (AG ¶ 16(a)) of relevant facts under SOR 1.a (citing SOR 1.b-1.i, and 1.l (including only infractions between April 2010 and the June 2015 e-QIP). The SO1.b-1.lconduct constitutes rule violations within AG ¶ 16(d)(3). Applicant denied all allegations. After a full review of the record, I make the following factual findings. In assessing the credibility of Applicant’s testimony, I have considered that because English is not his native language, his awkward use of words and phrases resulted in some communication problems. ISCR Case No. 97-0356 at 2 (App. Bd. April 21, 1998)

Applicant is 61 years old. He was born in Ghana where he married his wife in 1981 and received a bachelor’s degree. He immigrated to the United States in 2004 and became a naturalized citizen in 2009. He received a master’s degree later in the same year. He has five sons whose ages are 35, 33, 32, 24, and 20. His daughter is 28 years old. He has owned his own home since 2012. He has been a security officer for a defense contractor since February 2010. His job history includes truck driving and employment in several positions at an airport. Applicant testified he has had a security clearance for seven years, but his June 2015 e-QIP indicates that he never had a security clearance. (Tr. 6-14, 48, 123)

Applicant’s coworker (Witness A) has been a security officer with their employer for nine years, and has held a security clearance since 2008. He has worked with Applicant for six years. After identifying the employer’s work place regulations and disciplinary actions, Witness A explained that the disciplinary policy operates on a calendar year basis with work place infractions being removed from an employee’s disciplinary history record after a year, rather than being carried forward into the next calendar year. An employee is permitted six late-to-work violations in a year before disciplinary action is taken. Violations of infractions in different categories may be considered a pattern of violations. Witness A believes Applicant is usually punctual in arriving to work. He never had any reason to doubt Applicant’s integrity and vouches for his honesty. (GE 2-10; GE 2-10; AE K at 6; Tr. 24-43)

Witness A explained the difference between an infraction and a security violation. An infraction is a company violation when a security officer is late to work, or is at his post without a radio,1 or at his post without a hat. A security violation involves the federal agency (State Department) directly. An example of a security violation occurs when a contractor security officer leaves his post in the State Department building without being officially relieved, and a person without authority, enters the building. That type of offense would be investigated as a security violation by the State Department Diplomatic Security. (Tr. 24-43)

Witness B has been a security officer and has held as security clearance for 11 years. He has known Applicant for five to seven years through their work assignments at Department of State buildings. His understanding of the employer’s discipline policy (removal of work infraction after a year) is the same as Witness A. Applicant’s telephone number would not be stored in Witness B’s cellphone directory if he did not have high

1 The radio, which is issued to the officer at the beginning of his shift, can be used to

of State building. An officer could make emergency calls if required. (Tr. 40-42) quality character. Based on his military background, Witness B is testifying in Applicant’s behalf because he believes Applicant is an honest person who warrants a security clearance. (Tr. 43-58)

Applicant’s pastor (Witness C) has a master’s degree and a doctorate in divinity. He has been a pastor for 25 years. He is semi-retired currently because of a disability. He is married with three adult-aged children. He has known Applicant for about 17 years, 4 years in Ghana and 13 years in the United States. Applicant is an elder, one of three elders who assist Witness C in administering various church activities offered by the church, including preaching sermons. To qualify as an elder, one must: be respected by the congregation and in the community as a trustworthy leader; be able to teach the bible; be friendly and honest; and, be able to represent the church in area and regional conferences. As an elder, Applicant is in charge of the family life department that provides counseling or intervention in marital and family issues. Applicant has been a very good elder for many years. Witness C identified two undated photographs of Applicant preaching sermons at the Saturday church service. He also identified a photograph of Applicant (appearing on behalf of Witness C) standing with the organizational leader of an important regional church conference. (AE H, I, J; Tr. 58-68)

Witness C’s knowledge of the issues at the hearing was limited. Applicant indicated that he was filling out a form (Witness C never saw the form) and there was some area in the form that he did not understand. Because of the honesty and trustworthiness Applicant has demonstrated as an elder in the church over the years, Witness B opined that he would not willfully mislead the Government. (Tr. 68-71)

Witness D is married with children. He has known Applicant since 2007 when they met at the church in 2007. Witness D and Applicant have worked as elders for the past four years. As an elder, Applicant directs the prayer ministry on Wednesday. He conducts family counseling and teaches the bible. He organizes youth activities and represents the church in regional activities. Regarding the issues involved at the hearing, Applicant indicated to Witness D that the former did not put some information on a security form because his employer told him that after a year, the information does not need to be on the form. In their ten-year friendship, Witness D admires Applicant’s truthfulness and dedication. (AE J; Tr. 72-83)

Witness E, Applicant’s son, is 34 years old and married with one young son. He has held a security clearance since 2013. Witness E lives with Applicant to help them financially and to assist in raising his younger siblings. As a reverse engineer in information technology (IT) for the past five years, he investigates malicious computer codes. During Witness E’s security investigation, Applicant helped him fill out the security form, emphasizing the importance of answering all questions truthfully and accurately. While growing up in Applicant’s household, Applicant has instilled the importance of honesty, hard work, and taking responsibility. When Applicant was filling out his security form (as he told Witness E), he asked his supervisors about his (disciplinary) write-ups that he had compiled during the period (circa April 2010 to June 2015). A supervisor told him that he did not need to put any write-up on the form that was more than a year old. (Tr. 83-103)

Witness F, Applicant’s wife, a naturalized United States (U.S.) citizen, has been married to Applicant for 36 years. All her five sons and one daughter are U.S. citizens. Witness E, three other sons, and one daughter live with Applicant. After identifying family photographs in various settings, Witness F testified about Applicant’s work in the church. As an elder, Applicant organizes church programs. He is a marriage counselor and conducts interventions in other family issues. As a husband, he is truthful, honest, responsible, and a stable family man. (AE A-G, J; Tr. 103-118)

As a security officer for the last seven years, Applicant maintains his assigned building. One of his assignments is prevent criminals from entering the building. Applicant responds to emergencies like fire alarms and 911 calls for assistance. (Tr. 118-126)

SOR 1.b – May 2010: Applicant received a letter of reprimand for failure to carry out assigned tasks by allowing a visitor in the building without proper identification. Applicant accepted copies of identification when no reproductions of any type were allowed. Though he believed that the reprimand was unwarranted, he and another security officer received the reprimand. The assistant deputy manager explained that a second violation of the same offense would be a two-day suspension. Applicant did not repeat this offense within a 12-month period or the period between April 2010 and June 2015. (GE 2; Tr. 126-130)

SOR 1.c – January 2011: Applicant received a letter of counseling for a non- medical call off. Applicant remembered it was snowing. He told his supervisor by phone (as he always does) that he was going to be late because of the poor road conditions caused by the snow. (GE 3; Tr. 130-133)

SOR 1.d – May 2011: Applicant received a letter of reprimand for damaging a government vehicle. On the day the incident occurred, Applicant would travel around in a vehicle and relieve other security officers who would then go to lunch or for a break. Applicant was backing the vehicle and hit a trash dumpster. The impact damaged the rear window of the vehicle. Applicant’s employer charged him between $250 and $300, and he paid for the damage to the rear window of the vehicle. (GE 4; Tr. 133-138)

SOR 1.e – June 2012: Applicant received a letter of reprimand for not wearing his hat while on duty. Applicant was returning from his break. When he arrived at post (work location), he sat down and removed his hat to wipe off some perspiration. His supervisor happened to be in the area. Applicant signed the reprimand because he removed his hat. (GE 4; Tr. 138-140)

SOR 1.f – August 2012: Applicant received a letter of reprimand for having a personal cell phone with him while on duty at his post. Applicant forgot about his phone when he left the locker room. After he arrived at his post, regulations do not allow the officer to return to his locker unless there is another officer to relieve him. Applicant confirmed the supervisor’s question that he had a phone in pocket. Applicant signed the letter of reprimand. (GE 5; 140-142)

SOR 1.g – May 2013: Applicant received a one-day suspension for having a personal cell phone with him while on duty. The same circumstances resulting in the violation in August 2012 occurred in May 2013. Applicant forgot he had the phone in his pocket when he left the break room. (GE 6; Tr. 142- 147)

SOR 1.h – April 2014: Applicant received a letter of reprimand for leaving a company assigned radio in the restroom. Applicant explained that he put the radio behind him (probably on top of the toilet). To avoid being written up for returning late at this post, he put on his vest, but forgot to pick up the radio on his way out of the restroom. He immediately called the supervisor at the security control center who informed him they had the radio. When he went off duty, he went to the security control center and signed the reprimand for leaving the radio in the restroom. (GE 7; Tr. 148- 149)

SOR 1.i – December 2014: Applicant received a written reprimand for unreasonable delay in carrying out tasks and failing to report a potential security issue in a timely manner. The supervisor witnessed the first part of the violation. He provided a summary of the events, citing the regulation and Applicant’s violation by not contacting local law enforcement within a reasonable period. Somehow, added to the deputy manager’s original comment to cite Applicant for “loafing/unreasonable delays in carrying out tasks,” was “failing to report a potential security issue in a timely manner.” The “potential security issue” portion of the allegation the SOR allegation does not appear in any other location of the December 10, 2014 memorandum. Applicant believes he made the appropriate telephone call in three to five minutes rather than ten minutes as cited in the memorandum. (GE 8; Tr. 149-154)

SOR 1.j – October 2015: Applicant received a written notice of violating company policy by returning a government vehicle without first filling the gas tank. According to company policy, if the incoming security officer returns the vehicle with a half-filled gas tank, he must fill the tank. Applicant believed that when he returned the government vehicle to the job site, the gas tank was filled to more than half of its capacity. Applicant asked his supervisor to check the mileage on the odometer, but did not receive an answer. Applicant’s statement on the employer’s October 4, 2015 notice of infraction acknowledges the violation. (GE 9; Tr. 149-154)

SOR 1.k – March 2016: Applicant received a letter of reprimand for losing a company gas credit card that was in his possession. According to the summary of events, on February 24, 2016, Applicant reported that the company credit card was missing. Applicant recalled purchasing gas at the station. When he returned to the job site, he had the gas receipt, but could not find the credit card. He contacted his supervisor who told him to return to the station where he purchased the gas. He spoke to the gas station attendant, but could not find the card. After he and his supervisors searched the vehicle he had been using, they reported the card lost and he received the letter of reprimand. (GE 10; Tr. 157-159)

The government asked Applicant about the four late-to-work reprimands between April 2010 and February 2016 (SOR 1.l). The February 2016 late infraction occurred because he was late to work because of snow. Arriving late to work in January 2016 occurred because he was involved in a vehicle accident while in transit from the shooting range. He could not recall the circumstances leading to the late-to-work written reprimands from April 2012 and April 2010. Applicant has never committed a security violation. (Tr. 176- 179)

Regarding the SOR 1.a allegation of a deliberate concealment of SOR 1.bthrough 1.i, and 1.l (to June 14, 2015, when Applicant certified the e-QIP), Applicant’s testimony was relatively clear. He became confused by Section 13A of the e-QIP asking whether he had ever received a written warning or official reprimand in the last seven years. When he asked his company supervisor about whether to disclose this information, the supervisor indicated that he did not have to disclose infractions more than 12 months old since they were removed from his disciplinary record. He thought all the infractions were removed, but forgot about the December 2014 violation.2 Applicant did not know that he could seek help from a facility security officer (FSO). Before his June 2015 e-QIP, Applicant could not access his personnel file though he never asked. But after receiving the disciplinary information in 2015 or 2016 from a government investigator, Applicant inserted a disciplinary history under Section 13A listing seven disciplinary incidents into his July 2016 Standard Form (SF) 86. The December 2014 infraction (SOR 1.i) was not included however. Although Applicant recalled signing and dating the October 2016 SF 86, his copy posts a date, but has no signature. In November 2017, he requested a copy of the SF 86 showing the date he submitted the form. His employer informed Applicant that he was responsible for the requested information and recommended he retrieve the information from his e-QIP account. (AE L, M, N; Tr. 159-174)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which must be considered in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision.

2 Claiming that he forgot about the December 2014 incident because he was not allowed to review his personnel file is difficult to reconcile when incident occurred six months before he certified the June 2015 e-QIP. (Tr. 161) A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Under Directive ¶ E3.1.14. the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ 33.1.15., an applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion of establishing that is clearly consistent with the national security interests of the United States to grant him a security clearance.

ANALYSIS

PERSONAL CONDUCT

15. The Concern. Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. The following will normally result in an unfavorable national security eligibility determination, security clearance action, or cancellation of further processing for national security eligibility: (text deleted)

16. Conditions that could raise a security concern and may be disqualifying include:

(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine national security eligibility or trustworthiness, or award fiduciary responsibilities;

(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. This includes, but is not limited to, consideration of:

(1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or government protected information;

(2) any disruptive, violent, or other inappropriate behavior;

(3) a pattern of dishonesty or rule violations; and

(4) evidence of significant misuse of Government or other employer's time or resources.

17. Conditions that could mitigate security concerns include:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;

(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by advice of legal counsel or of a person with professional responsibilities for advising or instructing the individual specifically concerning security processes. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; and

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.

Applicant omitted his disciplinary record from Section 13A of his June 2015 e- QIP. Though he acknowledged the omission and the Government exhibits show that he omitted the information, he maintains that he did not do so intentionally. By denying the allegation, the burden remained with the Government to prove that Applicant had formed the intent when he submitted his e-QIP. An omission standing alone does not prove the element of intent to omit. Omissions can result from haste, oversight, forgetfulness, misinterpretation, or obtaining incorrect advice from a source who should be able to assist in filling out e-QIPS. The administrative judge must review the direct and circumstantial evidence to determine whether Applicant had the necessary intent to omit material and relevant information. See ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004) Having carefully weighed the evidence, I conclude Applicant did not deliberately attempt to omit the required Section 13A disciplinary information from his June 2015 e-QIP. AG ¶ 16(a) does not apply.

When Applicant confronted the disciplinary record segment of his e-QIP, he wisely contacted his supervisor for guidance on how to reply to the question. Unfortunately, instead of receiving the correct advice to disclose everything on the Government form, the supervisor told Applicant that he did not have to list any disciplinary infraction that was over one calendar year because those infractions were removed from his record. He relied on the supervisor’s advice to his detriment. Applicant did not know that an FSO was available to provide the correct guidance for this security issue. During his interview with the Government investigator, Applicant learned that he had to disclose the disciplinary information. In his July 2016 e-QIP, he disclosed a large part of his disciplinary infractions. His disclosures in the July 2016 e- QIP and at the hearing indicate he understands that full disclosure on Government security forms must be the standard and not the exception. In sum, Applicant’s explanation for the omitted information on his June 2015 e-QIP is credible. AG ¶ 17(a) has limited application because there is no evidence Applicant voluntarily disclosed the missing information to the government investigator. AG ¶ 17(b) is applicable because Applicant’s supervisor should have supplied accurate information to Applicant during the security investigation, or directed Applicant to the FSO.

Applicant’s infractions of his company’s disciplinary workplace regulations from April 2010 to February 2016 constitute rule violations under AG 16(d)(3). When the list of offenses are lumped together, a pattern of rule infractions emerges. However, none of the infractions were determined to be security violations. The only infraction that uses the word “security” is SOR 1.i. However, there is no reference in the documentation supporting the infraction indicating that Applicant failed “to report a potential security issue” Viewing the offenses individually as well as together, Applicant did not repeat the misbehavior cited in SOR 1.b (May 2010), 1.c (January 2011), and 1.d (May 2011). He did not repeat the SOR 1.e (June 2012) infraction of not wearing his uniform. He drew a one-day suspension for violating the regulation of having his personal cell phone with him on two occasions (SOR 1.f, April 2012, 1.g, May 2013) within one year.

In April 2014, he left his company radio in the restroom (SOR.1.h). In December 2014, he was written up for loafing and “failing to report to report a potential security issue in a timely manner” (SOR 1.i). In October 2015, he returned the government vehicle without filling the gas tank. In March 2016, he lost a credit card. Except for the two violations of possessing his personal radio in 2012 and 2013, and the four late-to- work infractions between 2010 and April 2016, there is no record of Applicant repeating the other offenses. While the most recent infraction occurred less than two years ago, the offenses were minor in nature and scope. Applicant receives limited mitigation under AG ¶ 17(c).

WHOLE PERSON CONCEPT

Under the whole-person concept, an administrative judge must evaluate an applicant’s eligibility for access to classified information by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for access to classified information must be an overall common-sense judgment based upon careful consideration of the guidelines and the whole-person concept.

In reaching my decision in this case, I have considered the disqualifying and mitigating conditions in the context of the whole-person concept. Applicant is a 61-year- old man who has been married since 1981. He has five sons whose ages are 35, 33, 32, 24, and 20. His daughter is 28 years old. He immigrated to the United States in 2004 and became a naturalized citizen in 2009. He has a bachelor’s and master’s degree. He has owned his own home since 2012. He has been a security officer for a defense contractor since February 2010.

Wtness A and B, have observed Applicant as a coworker for five to seven years. They vouch for his honesty and trustworthiness. Witness C (pastor of the church) and Witness D (elder of the church) have interacted with Applicant on a regular basis in the day-to-day operation of their church. Witness C has known Applicant for 13 years and is impressed by Applicant’s positive impact on the church as an elder. Witness C extols Applicant’s honesty and trustworthiness. Witness D (elder of the church) has been friends with Applicant for 10 years, and has worked with him as an elder for the past five years. Based on their ten-year relationship, Witness D has found Applicant to be truthful and dedicated.

Witness E, Applicant’s 34-year-old son and his family live with Applicant. The son helps raise his younger siblings. Before he received his security clearance in 2013, Applicant helped Witness D with his security clearance application, emphasizing the importance of entering truthful and accurate information on the security form. By living in Applicant’s household, Witness D has learned the value of honesty, hard work, and taking responsibility. Witness F, Applicant’s wife for 36 years, characterized Applicant as an honest, responsible, and stable family man. The favorable character testimony of Applicant’s honesty persuades me to conclude that Applicant did not deliberately omit information from the June 2015 e-QIP, even the December 2014 infraction that occurred only six months before he certified the e-QIP. Weighing all the evidence under the disqualifying and mitigating conditions in the context of the whole-person concept, Applicant has mitigated the security concerns raised by the personal conduct guideline.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline F: FOR APPLICANT

Subparagraphs 1.a-1.l: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Eligibility for access to classified information is granted.

________________ Paul J. Mason Administrative Judge

FOOTNOTES

communicate with other security officers, the supervisor, or the command center at the main Department